-DHARMARATNA THERO v. SIYADORIS AND OTHERS

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CA
Dharmaratna Thero v. Siyadoris
245
DHARMARATANA THERO
v.
SIYADORIS AND OTHERS
COURT OF APPEAL.
G. P. S. DE SILVA, J. AND JAYALATH. J.
A. APPLICATION No. 222/78.
C. MATARA 21234.
FEBRUARY 15 AND MARCH 5 AND 8,1985.
Partition action – Defendant claiming that corpus was part of a larger land – Largerland surveyed on Commission – Belated application to register hs pendens – Section19(2) (a) and (b) of Partition Law No. 21 of 1977.
The plaintiff filed this suit in 1950 seeking a partition of the land called Udakumbura.This land was surveyed on a Commission. The 62nd defendant taking up the positionthat the corpus sought to be partitioned was a portion of a larger land calledHalgahakumbura got the larger land surveyed in 1953 and again in 1966, There were275 parties in the case and it eventually came up for trial on 11.1,1978 on which datethe 62nd defendant moved to be allowed to register the lis pendens in respect of thelarger land. This was objected to by all the parties. The Court by its order refused theapplication. After an unsuccessful earlier attempt to obtain leave to appeal from thisorder, the 62nd defendant moved the Court of Appeal in revision.
Held –
It is on the motion of the party defendant interested in having the larger landpartitioned that the duty of the Court arises to specify in terms of section 19 (2) (h| ofthe Partition Law No. 21 of 1977 the party by whom and the date on or before whichthe application for the registration of the action as a lis pendens in respect of the largerland should be filed. The petitioner filed his amended statement in May 1956 and hispresent application made on 11.1.1978 when the case was for trial was belated.
The petitioner could still participate in the trial. He could pursue his claim in hisstatement of claim for interests in Udakumbura or in the alternative seek a dismissal ofthe action on the basis that the plaintiff was seeking to partition only a portion of a largerland
Case referred to :
(1) De Silva v. De Silva 3 CWR 318.
APPLICATION for Revision of the Order of the District Court of MataraKithsiri P. Gunaratne with Miss S. M. Senaratne for petitioner ( 62nd defendant}.p A. D Samarasekera, P.C. with Kanchana Abhayapalafor respondents.
Cur. adv. vult.
246
Sri Lanka Law Reports
(1985) 2 Sri L.R.
May 31. 1985.
G. P. S. DE SILVA, J.
The plaintiff filed this action as far back as 1950 to partition the landcalled Udakumbura. 2 A. 3 R. 37 P. in extent. This land was shown inPlan No. 235 dated 22.11.51 made by Licensed Surveyor, Ernest,and also shown in the subsequent Plan No. 1314 of 16.1.65 made by
S.Wickremasooriya, Licensed Surveyor. The petitioner in the presentapplication for revision was the 62nd defendant in the partition actionand it was his position that Udakumbura which the plaintiff sought topartition was only a portion of the larger land called Halgahawela inextent 29 A. 3 R. 06 P. and which forms lot 8 in F.V.P. 37. At theinstance of the petitioner, Plan No. 832 dated 21.1.53 was preparedby Surveyor H. S. Dias showing the larger land called Halgahawela. Onan application made by the petitioner the aforesaid Plan 235 depictingUdakumbura was superimposed on the said Plan.832. Since theSurveyor H. S. Dias died, the petitioner moved for a commission toanother Surveyor and Plan No. 343 was prepared by SurveyorWimalasuriya in 1966 depicting the larger land Halgahawela.
Although the action was instituted in 1950, the case was ultimatelytaken up for trial only on 11th January, 1978. On that date anapplication was made on behalf of the petitioner that he be allowed toregister the lis pendens in respect of the larger land, namelyHalgahawela. This application was objected to by all the other parties.It may be noted that there were no less than 275 parties to the action.After hearing the submissions made on behalf of the parties, theDistrict Judge refused the application made on behalf of the petitionermainly on the ground that it was a hopelessly belated applicationwhich, if allowed, would mean that the entire proceedings would haveto commence afresh. The District Judge has in the course of his orderobserved that this action has already taken 28 years and if thepetitioner's application is allowed it will take another 50 years toconclude the trial. It is this order which the petitioner now seeks to setaside by way of revision.
Mr. Gunaratne, Counsel for .the petitioner strenuously contendedthat the District Judge was in. serious error when he refused theapplication to register the lis pendens in respect of the larger landwhich had been surveyed twice on commissions issued by court.Counsel urged that the court was fully aware of the petitioner's
CAOharmaratna Them v. Siyadoris (G. P. S. De Silva, J.)247
position in the case and that the petitioner had complied with all thesteps required of him under section 19 (2) (a) of the Partition LawNo. 21 of 1977. Mr. Gunaratne urged that while the petitioner haddone all that he had to do when he sought to make the larger land thesubject matter of the action, it was the court that failed to carry outthe imperative duty imposed upon it under section 19 (2) (b) of thePartition Law No. 21 of 1977.
Section 19 (2) (b) reads thus
"Where any defendant seeks to have a larger land made thesubject matter of the action as provided in paragraph (a) of thissub-section, the court shall specify the party to the action by whomand the date on or before which an application for the registration ofthe action as a Its pendens affecting such larger land shall be filed incourt, and the estimated costs of survey of such larger land asdetermined by court shall be deposited in court".
It would appear that on a literal reading of the section, the duty is caston the court to specify the party by whom an application for theregistration of the action as a lis pendens in respect of the larger landhas to be filed. But the relevant question is, at what point of time doessuch duty arise ? It seems to me that the duty of the court arises onlyupon the party defendant interested in having the larger landpartitioned moving the court to make the appropriate order in terms ofthe section. This Is a matter which would normally dome up in thecourse of the motion roll and it was surely the duty of theAttorney-at-law representing the petitioner to have invited the court tomake the required order. How else is the court to be made aware ofthe need to make an order in terms of section 19 (2) (b) ? Theinterpretation contended for on behalf of the petitioner would place anundue burden on the Court.
It is relevant to note that the amended statement of claim whereinthe petitioner averred that the corpus sought to be partitioned wasonly a portion of a larger land, was filed as far back as May 1956. Thepetitioner waited till 11 th of January. 1978, which was the date fixedfor the trial of the action, to make his application to register the lispendens in respect of the larger land. As submitted by Mr.Samarasekera, Counsel for the plaintiff-respondent, it takes very manyyears before a partition action, where there are as many as 275parties, reaches the stage of trial. This was an action4iled way back in
248
[1985] 2 Sri LR.
Sri Lanka Law Reports
1950. In the circumstances, no court acting fairly and reasonably couldhave allowed the petitioner's application which was opposed by all theother parties to the action.
As an alternative submission, Mr. Gunaratne urged that it was theduty of the plaintiff to have moved the court for an order in terms ofsection 19 (2) [b) of the Partition Law No. 21 of 1977, since theburden is on the plaintiff and not on a party defendant to prosecute theaction. I find this submission unacceptable. It is the petitioner alonewho sought to bring in the larger land as the corpus of the action. Justas much as it was the petitioner who moved for a commission tosurvey the larger land and got the necessary plans prepared, it wasalso his duty to have invited the court to make the orders in terms ofsection 19 (2) (6) and got the lis pendens registered in respect of thelarger land. This he failed to do until the date of trial. As observed byShaw, J. In De Silva v. De Silva {1) 'In a partition suit, however, all theparties are in a sense plaintiffs'.
Moreover, as submitted by Mr. Samarasekera. the order of theDistrict Judge did not preclude the petitioner from participating at thetrial. The ruling of the court was that the larger land cannot form thecorpus of the action because of the failure to register the lis pendens.On the other hand, the petitioner in paragraph 8 of his amendedstatement dated 4th May, 1956 claimed rights in the corpus(Udakumbura). Thus it was open to the petitioner to have participatedat the trial and proved his rights or in the alternative he could havesought a dismissal of the action on the basis that the plaintiff wasseeking to partition only a portion of the land. Indeed this is clear fromthe terms of paragraph (1) of the prayer to his amended statement ofclaim where the reliefs are prayed for in the alternative. Counsel statedthat both the interlocutory decree and the final decree were entered in1978. The petitioner had earlier made an application for leave toappeal which was refused by this court.
On a consideration of all these matters set out above, I am satisfiedthat this is not a fit case for the exercise of the extraordinary powers ofrevision vested in this court. The application for revision is accordinglydismissed. In all the circumstances, I make no order as to costs.
JAYALATH, J. – I agree.
Appeal dismissed.